The Big Sandy news. [volume] (Louisa, Ky.) 1885-1929, 1887-12-01
RAILROAD LAND GRANTS.
Attorney General GarIand's Opinion Rel
stive 10 the Adjustment OF Railroad
Land Grants Under the Act OF March 3,

Lana Grants Under the ACT OF mhrch d
1887.
WASHINGTON, Nov. 23.-The following
opinion relative to the adjustment Of rail
road land grants under the act OF March 8,
1857, was made public yesterday:
DEPARTMsST OF JUSTICE,
WAsHINGToN, Nov IL, 1851.
The Secretary OF the Interior.
SIR--By your letter of October 49, 1891 you
submit three questions for my opinion. They
arise upon the construction OF sections ;, = and
3 OF the act OF tht I'd OF March, 1887, which Us
shown by its title, as whole, was passed 10
provide for the adjustment OF land grants made
by Congress To aid In the construction Of rail-
and for other purposes (2i U. S. Stats. $500.
The irst section OF the act directs the adjust
ment OF the grants.
The second section provides for the restora-
tion OF title TO the United States. where lands
have been enormously ascertained or patented
TO the railroads. The third section is THAT il
in The adjustment OF said grants, IL shall appear
that the homestead or pre-emption entry OF any
bona jfde settler has been enormously cancelled
on account ofany railroad grant, or withdrawal
ofpublic lands from the market.each settler upon
application, shall be reinstated in all his rights
and allowed to perfect his entry by complying
with the public land laws provided. that he has
not leased another claim, or Innde an entry in
lieu OF the one so enormously cancelled; and
provided, also that he did not voluntarily
abandon said original entry. and provided, fur
ther, that II any OF said settlers do not renew
their application to be reinstated within rea-
sonable time TO be nxed by the Secretary OF the
Interior then oil such unclaimed land, shall be
disposed OF under the public land laws, with
priority OF right given 10 bona hde purchasers OF
said unclaimed land, II any. and II there be no
such purchasers, then to bona tide settlers re-
siding thereon" The question submitted un-
der this section is: What class of purchasers
is referred TO by the expression OF bona .fde
purchasers of said unclaimed landst Three
classes OF persons are provided for under this
section First. bona fde settlers who home
stead or pre-emption entries have been erro.
neodsly cancelled on account OF railroad
grant or withdrawal: second, bona f6e pur-
chusers OF such unclaimed lands third, bona
fde settlers residing there. n.
The rights OF the several classes to the lands
referred TO In the section are successive. in the
order stated in the section, The first in right Is
the homestead or preemption settlers, whose
entry has been wrongiully cancelled II he
elects TO assert his Fight, and has not been dis
qualified by locating another claim or making
anot er entry in lieu OF the entry erroneousiy
cancelled. his right is absolute. and, the success
siye rights OF the remaining two classes cannot
attach III he lawfully asserts his claim IL he
fails 10 claim the land, or Is disqualified under
the act the Hecondclass o. persons, who are the
bona fde purchasers OF the land unclaimed by
him, attach and have precedence over the third
class. The bona fde purchas ers here referred to
nrc those who, without knowledge OF wrong or
error, have purchased from the railroad com
pany lands which had been previously entered
by presumption or homestead settler, whose
entry had been enormously canccl ed, as de-
scribed In the first clause OF the third section,
and which land the pre-emption or homestead
settler did not elect to claim after the recovery
by the proceedings prescribed by the second
section OF the last act.
The second question submitted by you Is +:
"Cnn the department, after adjustment Of the
grant By the department, issue patent to tho
purchaser OF such land before the said lano has
been reconveyed by the road. or title recovered
by judicial proceedings This question. as
shown by your letter, refers to patents whose
10 IN OF fbn
act. The fourth section Is part OF a general
scheme for the disposition OF lands which have
been enormously certified or patented to the
railroads which certitcation or patenting has
been set aside and the title restored to the
United States, as provided for In the second sec.
ton. The language OF the section, that as to
ously certified or patented as aforesaid, in the
fourth section, refers to the same lands de.
.scribed In the second section. rs follows: 'That
II il shall appear that lands have been,
from any cause, heretofore enormously certi-
fed or patented, etc."
The second section declares that the mode to
finally determine whether the lands shall have
been so enormously certified or patented, shall
be by the admission OF the company and recon.
vcyance, or In case OF dispute. by judicial pro-
ceedings. Until the land shall have been ie-
gally determined to belong to the United States,
the right to issue patents under the fourth sec
tion does not arise, II patents should issue un-
der the fourth section before reconveyance or
judicial recovery under the second, and pro-
CteulnBS SnOulu tlen De lnStltuteQ TO cancel
the patent issued To the railroad, in case of a
decision adverse to the government in the pro-
ceediugs instituted, the patents would BE- out
standing at the same time for the same land
By express words OF the section with reference
to the time when the patent shall issue are:
'The person or persons so purchasing in good
fai h shall be entitled to the land SO
purchased Qter the grants respective
ly shall have been adjusted As the adjust
ments, then, must be completed first, the pat
ents nder the fourth section are only intended
TO be issued after it shall have been legally do
termined, in the mode prescribed In the second
section. then the certifcation or patent to the
railroad had been erronCously issued. ,
The thir question is as follows: Third, the
fifth section of said act provides that where
rairoad company has sold TO citizens of the
United Sta es, or persons who have declared
their intention OF becoming such. lands not con-
veyed TO or for the use of such company, the
same being the numbered section prescribed in
its grant, and co-terminous with the con-
structed part OF the road. and whore such lands
are for any reason excepted from the operations
OF the grant OF said company, il shall be lawful
for the bona .hde purchaser thereof from said
company to make payment to the United States
for said land, at the ordinary government price
for like lands, and thereul patents shall issue
therefor TO the said bona fds purchaser or his
heirs or assigns. The question submitted under
this section is whether the provso last above
quoted is sconfined in its application to the lands
within the primary granted limits of which the
company has made selection, butwhich has not
been approved to IT."
The ftrst section of the act in the use OF the
word grant, must have necessarily included
both the primary and indemnity liz its in the ad-
iustment. as it was doubtless intended that the
adjustment should be full and final one The
land which, under the adjustment. were found
not TO be the property OF the railroad. were in
tended to be free from the cloud OF claim by the
railroad, and restored TO the public domain for
disposition according TO law. The intentof the
act shows that to carry out its last purposes the
word grant" wherever used in the second,
a
lands in both primary and indemnity limits,
rs each directly, or by necessary inpl cation.
refers to the adjustment provided for in the first
section The protection Afforded and redress
granted the settler by each OF the sections is
fully as important in the indemnity as in the
primary limits.
The limitation Of further certihcation or pat
enting conta ned in the seventh section Is fully
as important as and OF more practical value
when applied to the indemnity limits, than to
the primary limits OF the grant The fifth sec.
tion is q part OF the same scheme as the resi-
due OF the act. The wrong done the settler,
who in good faith shall have purchased lands OF
the railroad company, TO which the company by
the adjustment is shown TO have no legal right
is identical, whether the purchases are In the
or primary limits. The hardship he
may be subjected TO by loss OF his land, i'm
and labor is the same in either case
That'the section so by the railroad company
shall have been approved is not required by the
fifth section, nor that IL shall have been pat
ented. That the land shall have been approved
entitled the benefit OF the sixth section is not
required. BY the words OF the act, the only re-
quisite established to entitle those wronged to
its benefit is. that they shall be citizens OF the
United States. or shall have declared their in
tention TO become citizens: that it shall have
been sold to them by railroad company is q
part OF its grant; that the land shall not have
been conveyed to, or for the use OF the com
pany; that the lands shall be OF the numbered
sections pre- cribed In the grant and co-termin-
ous with constructed parts OF the road, and that
the purchasers shall have bought in good faith
IL was not intended to limit the redress to cases
In which the ilroad could rightfully have sold
the lands. The whole remedial part was passed
with n recognition OF the fact that the rlilroad
company had sold the lands to which they had
no just claim ,t
The fifth section expressly refers to such
lands as had been sold which had not been on
seycd "to or for the use OF such company IL
Is not required that the sale by the raiiroad
company shall have been made on It's part In
good faith. but only that the purchaser shall
have bought in good faith. That it was sold
under claim OF the grant 10 another IN good
faith Is the ground OF his equity. In order that
Tho remedy may be adequate to redress the
wrong, the word grant in the ffth section
must be construed TO include, as II Goes In the
preceding sections OF the act both primary and
limits Very respectfully,
a. II GARLAND, Attorney General.